Citation Nr: 9927267
Decision Date: 09/23/99 Archive Date: 10/05/99
DOCKET NO. 95-31 689 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to compensation benefits under 38 U.S.C.A. § 1151
(1991) for a right shoulder disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Solomon J. Gully, IV, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1976 to
January 1978.
This matter comes from the Board of Veterans' Appeals (Board)
on appeal from a September 1994 rating determination of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Los Angeles, California.
A review of the claims folder reveals that a letter mailed to
the veteran's last known address in September 1997, was
returned to the RO as undeliverable. A handwritten note on
the envelope indicates that the veteran moved without leaving
a forwarding address. A June 1998 memorandum from a hearing
officer notes that while the veteran requested a Travel Board
hearing in the September 1995 substantive appeal (Form 1-9),
the RO did not have his current address. The record
indicates that the RO contacted the veteran's representative,
the Disabled American Veterans (DAV), to ascertain the
veteran's new address and/or telephone number. However, a
representative from DAV responded that the veteran's current
address and telephone number were not on file, and that its
mail had also been returned.
The Board notes that it is the obligation of the appellant to
keep VA informed of his whereabouts, and VA is not obligated
to "turn up heaven and earth" to find him. Hyson v. Brown,
5 Vet.App. 262 (1993). The "duty to assist" is not a one
way street, and the veteran can not stand idle when the duty
is invoked by failing to provide important information or
otherwise failing to cooperate. Wood v. Derwinski, 1
Vet.App. 190 (1991) (aff'd on reconsideration, 1 Vet.App. 460
(1991); Olson v. Principi, 3 Vet.App. 480, 483 (1992). In
view of the foregoing, the case will be processed as though
the veteran's Travel Board hearing request has been
withdrawn. 38 C.F.R. § 20.704(d) (1998).
In an August 1994 statement, the veteran expressed his desire
to pursue a claim for service connection for a left shoulder
disability, indicating that the disability is secondary to
his right shoulder disability. However, a review of the
claims folder reveals that this issue has not been
adjudicated by the RO. As this issue is not before the Board
on appeal at this time, and is not inextricably intertwined
with the issue now in appellate status, it is referred back
to the RO for appropriate action. Accordingly, the Board
will limit its consideration to the issue of entitlement to
compensation benefits under 38 U.S.C.A. § 1151 (1991) for a
right shoulder disability.
FINDING OF FACT
The claim of entitlement to compensation benefits under 38
U.S.C.A. § 1151 (1991) for a right shoulder disability is not
supported by cognizable evidence showing that the claim is
plausible or capable of substantiation.
CONCLUSION OF LAW
The claim of entitlement to compensation benefits pursuant to
38 U.S.C.A. § 1151 for a right shoulder disability is not
well grounded. 38 U.S.C.A. §§ 1151 and 5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Background
In May 1993, the veteran submitted a claim of entitlement to
compensation benefits under 38 U.S.C.A. § 1151 for a right
shoulder disability, asserting that this preexisting
disability increased in severity as a result of right
shoulder surgery at the VAMC in Houston, Texas, in 1981. In
addition, he reported receiving additional treatment for his
right shoulder disability at the VAMC in San Antonio, Texas,
in 1983.
The record reveals that the veteran failed to report for a VA
orthopedic examination scheduled in July 1993.
In April 1994 correspondence, the veteran reported that he
underwent an operation for "chronic dislocation of [the]
right shoulder" at the Houston VAMC in January 1982. He
related that he experienced pain and loss of range of motion
in the shoulder following the surgery, as well as "periodic
loss of strength in the grip in [the] right hand." The
veteran maintained that X-rays taken at the San Antonio VAMC
in 1983 showed that his current disability resulted from
"bone fragments in the shoulder caused by the operation."
The RO requested medical treatment records from the Houston
VAMC from January 1981 to January 1983, and from the San
Antonio VAMC from January 1983 to the present. A Report of
Contact, dated in July 1994, notes that there were no medical
treatment records found for the veteran at either facility.
In correspondence dated later that month, the RO informed the
veteran that a search for treatment records from both the
Houston VAMC, and the San Antonio VAMC was negative. It was
requested that he submit evidence in support of his claim.
In September 1994, the RO denied the veteran's claim of
entitlement to compensation benefits under 38 U.S.C.A. § 1151
for a right shoulder disability. The veteran filed a notice
of disagreement (NOD) with this decision in August 1995, and
indicated that he had no medical treatment records in his
possession. He submitted a substantive appeal (Form 9) the
following month, perfecting his appeal.
Records from the VA outpatient clinic in Beaumont, Texas,
show treatment for various complaints, including recurrent
dislocation of the right shoulder, from February 1986 to
September 1994. A list of appointments for the clinic from
November 1984 to December 1996, reveals that the veteran
canceled several appointments, and failed to reports for
numerous others.
A September 1997 rating decision continued the denial of
entitlement to compensation benefits under 38 U.S.C.A. § 1151
for a right shoulder disability.
Analysis
In pertinent part, 38 U.S.C.A. § 1151 provided that where any
veteran shall have suffered an injury, or an aggravation of
an injury, as the result of hospitalization, medical or
surgical treatment, not the result of such veteran's own
willful misconduct, and such injury or aggravation results in
additional disability or in death, disability compensation
shall be awarded in the same manner as if such disability,
aggravation, or death were service-connected.
In Brown v. Gardner, 115 S.Ct. 552 (1994), the United States
Supreme Court held that VA's interpretation of 38 U.S.C.
§ 1151 as encompassing only additional disability resulting
from VA negligence or from accidents during treatment was
unduly narrow. The Supreme Court found that the statutory
language of 38 U.S.C.A. § 1151 simply required a causal
connection between VA hospitalization and additional
disability, and that there need be no identification of
"fault" on the part of VA. The Supreme Court further found
that the then implementing regulation, 38 C.F.R.
§ 3.358(c)(3) (1991), was not consistent with the plain
language of 38 U.S.C.A. § 1151 with respect to the
regulation's inclusion of a fault or accident requirement.
The Supreme Court further held that not every "additional
disability" was compensable. The validity of the remainder
of 38 C.F.R. § 3.358 was not questioned. See Gardner, 115
S.Ct. 552, 556 n.3 (1994): "We do not, of course, intend to
cast any doubt on the regulations insofar as they exclude
coverage for incidents of a disease's or injury's natural
progression, occurring after the date of treatment. . . .VA's
action is not the cause of the disability in those
situations."
In sum, the Supreme Court found that the statutory language
of 38 U.S.C.A. § 1151 simply requires a causal connection
between VA medical treatment and additional disability but
that not every additional disability is compensable.
Thereafter, the Secretary of Veterans Affairs sought an
opinion from the Attorney General of the United States as to
the full extent to which § 1151 benefits were authorized
under the Supreme Court's decision. The requested opinion
was received from the Department of Justice's Office of Legal
Counsel on January 20, 1995. In essence, the Department of
Justice opined that "our conclusion is that the [Supreme]
Court intended to recognize only a narrow exclusion [to the
"no fault" rule], confined to injuries that are the
necessary, or at most, close to certain results of medical
treatment."
On March 16, 1995, amended VA regulations were published to
conform with the Supreme Court's decision. Section (c)(3) of
38 C.F.R. § 3.358 was amended to remove the "fault"
requirement which was struck down by the Supreme Court.
38 C.F.R. § 3.358(c)(1) provides that "[i]t will be
necessary to show that the additional disability is actually
the result of such disease or injury or an aggravation of an
existing disease or injury and not merely coincidental
therewith." Further, 38 C.F.R. § 3.358(b)(2) provides that
compensation will not be payable for the continuance or
natural progress of disease or injuries. 38 C.F.R. §
3.358(c)(3) provided that "[c]ompensation is not payable for
the necessary consequences of medical or surgical treatment
or examination properly administered with the express or
implied consent of the veteran, or, in appropriate cases, the
veteran's representative. 'Necessary consequences' are those
which are certain to result from, or were intended to result
from, the examination or medical or surgical treatment
administered."
Under 38 C.F.R. § 3.358(c)(3), compensation is precluded
where disability (1) is not causally related to VA
hospitalization or medical or surgical treatment, or (2) is
merely coincidental with the VA hospitalization or medical or
surgical treatment, or (3) is the continuance or natural
progress of diseases or injuries for which VA hospitalization
or medical or surgical treatment was authorized, or (4) is
the certain or near certain result of the VA hospitalization
or medical or surgical treatment. Where a causal connection
exists, there is no willful misconduct, and the additional
disability does not fall into one of the above-listed
exceptions, the additional disability will be compensated as
if service connected.
Effective October 1, 1997, 38 U.S.C.A. § 1151 was amended by
Congress. See section 422(a) of PL 104-204. The purpose of
the amendment is, in effect, to overrule the Supreme Court's
decision in the Gardner, which held that no showing of
negligence is necessary for recovery under section 1151. In
pertinent part, § 1151 is amended as follows:
Compensation under this chapter and
dependency and indemnity compensation
under chapter 13 of this title shall be
awarded for a qualifying additional
disability or a qualifying death of a
veteran in the same manner as if such
additional disability or death were
service-connected. For purposes of this
section, a disability or death is a
qualifying additional disability or
qualifying death if the disability or
death was not the result of the veteran's
willful misconduct and the disability or
death was caused by hospital care,
medical or surgical treatment, or
examination furnished the veteran under
any law administered by the Secretary,
either by a Department employee or in a
Department facility as defined in section
1701(3)(A) of this title, and the
proximate cause of the disability or
death was:
(A) carelessness, negligence, lack of
proper skill, error in judgment, or
similar instance of fault on the part of
the Department in furnishing the hospital
care, medical or surgical treatment, or
examination; or
(B) an event not reasonably foreseeable.
The Board notes that where a law or regulation changes after
a claim has been filed or reopened, but before the
administrative or judicial appeal process has been concluded,
the version most favorable to an appellant applies unless
Congress provided otherwise or permitted the Secretary to do
otherwise and the Secretary does so. Marcoux v. Brown, 9
Vet. App. 289 (1996); Karnas v. Derwinski, 1 Vet. App. 308
(1991). In this instance, however, the legislative change
applies only to claims filed (not pending) after October
1997, and thus the earlier version of section 1151 following
the Gardner determination is the only version applicable to
this case. See Jones (James O.) v. West, 12 Vet. App. 460
(19999); Boggs v. West, 11 Vet. App. 334, 343-44 (1998).
Since the Gardner determination, the U.S. Court of Appeals
for Veterans Claims (Court) has provided the Board with a
series of important cases on what constitutes a "well-
grounded claim." The Court has held that, in general, a
claim for service connection is well grounded when three
elements are satisfied. First, there must be competent
evidence of a current disability (a medical diagnosis).
Second, there must be evidence of an occurrence or
aggravation of a disease or injury incurred in service (lay
or medical evidence). Third, there must be a nexus between
the in-service injury or disease and the current disability
(medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995).
The Court has further held that the second and third elements
of a well-grounded claim for service connection can also be
satisfied under 38 C.F.R. § 3.303(b) (1998) by (a) evidence
that a condition was "noted" during service or an
applicable presumption period; (b) evidence showing post-
service continuity of symptomatology; and (c) medical or, in
certain circumstances, lay evidence of a nexus between the
present disability and post-service symptomatology. See
38 C.F.R. § 3.303(b); Savage v. Gobber, 10 Vet. App. 488,
495-97 (1997).
Where the determinative issue involves a question of medical
diagnosis or medical causation, competent medical evidence is
required to establish a well-grounded claim. Grottveit v.
Brown, 5 Vet. App. 91, 93 (1993). Where the determining
issue is a question of medical diagnosis or medical
causation, lay assertions cannot constitute evidence to
render a claim well grounded under 38 U.S.C.A. § 5107(a). If
no cognizable evidence is submitted to support the claim, the
claim cannot be well grounded. The Court has recognized that
the same criteria for well grounding a claim for service
connection apply to well grounding a claim for compensation
benefits under 38 U.S.C.A. § 1151. Jones, supra.
In Contreras v. Brown, 5 Vet. App. 492 (1993), a veteran
sought compensation pursuant to § 1151 for a back disability
allegedly caused by VA treatment of a nonservice-connected
right knee disability. He also contended that his left knee
was injured within a VA vocational rehabilitation program.
The Court, specifically citing to Gardner, found that the
veteran had failed to submit any medical evidence that his
current left knee and spine disabilities resulted from VA
surgery or treatment. Contreras, 5 Vet. App. at 495. The
Court, citing Grottveit, found that the veteran's own
statements were not competent evidence of medical causation.
Therefore, the claim was not well grounded as a matter of
law. Id. at 495-496. The Court stated, in pertinent part:
. . . even accepting his assertions as
true, he has not submitted any evidence
that could plausibly establish that those
incidents caused his current left knee
and spine disabilities. Absent such
evidence of a causal relationship, the
veteran has not submitted a well-grounded
claim, as a matter of law, for § 1151
benefits for those disabilities.
Contreras, 5 Vet. App. at 496.
In the current case before the Board, the veteran contends
that his right shoulder disability was aggravated by surgery
at the Houston VAMC in 1981 or 1982. However, as noted
above, a comprehensive search for the veteran's treatment
records failed to show the treatment alleged by the veteran.
Further, the veteran has indicated that he does not have a
copy of the medical records for this alleged treatment.
Consequently, the only evidence offered in support of the
veteran's claim are his own lay statements.
The Court has made clear that a lay party is not competent to
provide probative evidence as to matters requiring expertise
derived from specialized medical knowledge, skill, expertise,
training, or education. Espiritu v. Derwinski,
2 Vet. App. 492, 494-5 (1994). Consequently, while the
veteran is competent to provide evidentiary assertions,
including testimony, regarding the alleged treatment at the
Houston VAMC or manifestations perceptible to a lay person,
that are alleged to have occurred, he is not competent to
diagnose the etiology of his current right shoulder
disability or to provide an opinion on medical causation
involving the internal structures of the shoulder that are
not perceptible to a lay party. Thus, on the facts of this
case, whether the preexisting disability of the right
shoulder was aggravated by the alleged VA treatment involves
a matter of medical expertise and thus lay parties, like the
veteran, are not competent to provide evidence on this point.
Espiritu, supra.
The veteran has failed to submit competent evidence that his
preexisting disability increased in severity as a result of
VA care, including surgery. While the record shows treatment
for recurrent dislocation of the right shoulder in September
1994, the veteran's unsupported allegations are the only
evidence that relate any additional right shoulder disability
to VA care.
Under the Gardner determination, "malpractice or
negligence" is not at issue. The sole issue before the
Board is whether any disability resulted from the alleged
treatment of the veteran at the Houston VAMC in 1981 or 1982.
Under Gardner, the Board is required to find only a
disability or aggravation of a preexisting disability
resulting from VA treatment. However, no such evidence
exists in this case. Even considering Allen v. Brown, 7 Vet.
App. 439 (1995) (en banc), there is simply no competent
evidence indicating that the veteran's preexisting right
shoulder disability was aggravated in any way by the VA care,
including surgery. Accordingly, the veteran's claim must be
denied.
The Board finds no evidence to establish that the alleged
treatment of the veteran aggravated his right shoulder
disability. Therefore, under the standards established by
the Court in Contreras and Jones the claim is not well
grounded as a matter of law. Since this claim is not well
grounded, the VA has no further duty to assist the veteran in
developing the record to support his claim. See Epps v.
Gober, 126 F.3d at 1467-68 ("there is nothing in the text of
§ 5107 to suggest that [VA] has a duty to assist a claimant
until the claimant meets his or her burden of establishing a
'well grounded' claim"). Further, as the Board is not aware
of the existence of additional relevant evidence that could
serve to make the veteran's claim well grounded, there is no
further duty on the part of the VA under 38 U.S.C.A. §
5103(a) (West 1991) to notify him of the evidence required to
complete his application. See McKnight v. Gober, 131 F.3d
1483, 1484-85 (Fed. Cir. 1997).
In the September 1999 Appellant's Brief, the appellant's
representative contends that subsequent to the Court's
decisions pertaining to this issue, VA expanded its duty to
assist the appellant in developing evidence to include the
situation in which the appellant has not submitted a well
grounded claim. Veterans Benefits Administration Manual M21-
1, Part III, Chapter I, 1.03(a), and Part VI, Chapter 2,
2.10(f) (1996).
The appellant's representative further contends that the M21-
1 provisions indicate that the claim must be fully developed
prior to determining whether the claim is well grounded, and
that this requirement is binding on the Board.
The Board, however, is required to follow the precedent
opinions of the Court. 38 U.S.C.A. § 7269 (West 1991);
Tobler v. Derwinski, 2 Vet. App. 8, 14 (1991). Subsequent to
the revisions to the M21-1 Manual, in Meyer v. Brown, 9 Vet.
App. 425 (1996), the Court held that the Board is not
required to remand a claim for additional development, in
accordance with 38 C.F.R. § 19.9 (1998), prior to determining
that a claim is not well grounded.
The Board is not bound by an administrative issuance that is
in conflict with binding judicial decisions, and the Court's
holdings on the issue of VA's duty to assist in connection
with the well grounded claim determination are quite clear.
Bernard v. Brown, 4 Vet. App. 384, 394 (1993); 38 C.F.R. §
19.5 (1998).
In Morton v. West, 12 Vet. App. 477 (1999), the Court held
that the Manual M21-1 provisions pertaining to the
development of claims prior to a finding of well groundedness
are interpretative, in that they do not relate to whether a
benefit will be allowed or denied, nor do they impinge on a
benefit or right provided by statute or regulation.
The Court found that the Manual M21-1 provisions constituted
"administrative directions to the field containing guidance
as to the procedures to be used in the adjudication
process," and that the policy declarations did not create
enforceable rights. The Court also found that interpretative
provisions that are contrary to statutes are not entitled to
deference, and that in the absence of a well grounded claim,
VA could not undertake to assist a veteran in developing the
facts pertinent to the claim.
The Board has determined, therefore, in the absence of a well
grounded claim of entitlement to compensation benefits
pursuant to 38 U.S.C.A. § 1151 (West 1991) for a right
shoulder disability, VA has no duty to assist the veteran in
developing his case.
ORDER
Evidence of a well-grounded claim not having been submitted,
the claim of entitlement to compensation benefits pursuant to
38 U.S.C.A. § 1151 (West 1991) for a right shoulder
disability is denied.
Richard B. Frank
Member, Board of Veterans' Appeals